Marian Soldiers Securities And ... vs Executive Director
2021 Latest Caselaw 3436 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

           THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                   &

               THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

       MONDAY, THE 01ST DAY OF FEBRUARY 2021 / 12TH MAGHA,1942

                      WP(C).No.31171 OF 2014(S)


PETITIONER:

               MARIAN SOLDIERS SECURITIES AND CONTRACT LABOURERS
               ASSOCIATION, Reg.No.EKM/TC/307/2014,
               C/O.ARPUTHA SWAMY HOUSE, NEAR MILK SOCIETY, WALAYAR
               DAM POST, WALAYAR, PALAKKAD-678 642, REPRESENTED BY
               ITS SECRETARY, ZACHARIAS, AGED 49 YEARS,
               S/O.P.CLEATUS.

               BY ADV. ZACHARIAS (PARTY-IN-PERSON)

RESPONDENTS:

   1    EXECUTIVE DIRECTOR, VAN GUARD FORCE PVT. LTD.
        SOUPARNIKA, VYTTILA, ERNAKULAM-682 019.

   2    DISTRICT LABOUR OFFICER
        CIVIL STATION, KAKKANAD, ERNAKULAM-682 017.

   3    REGIONAL PROVIDENT FUND COMMISSIONER
        EPF OFFICE, KALOOR, ERNAKULAM - 682 017.

   4    THE DIRECTOR
        ESIS, MALLU'S BUILDING, KALOOR, ERNAKULAM - 682 017.

   5    THE SECRETARY
        KERALA CRICKET ASSOCIATION, GCDA STADIUM, KALOOR,
        ERNAKULAM - 682 017.

   6    THE SECRETARY
        KERALA FOOTBALL ASSOCIATION, KALOOR,
        ERNAKULAM-682 017.

   7    MANAGER, HUMAN RESOURCES DEVELOPMENT, ULTRA TECH CONCRETE V1-
        611B, INDUSTRIAL DEVELOPMENT AREA, BINANIPURAMP.P.O., EDAYAR,
        ERNAKULAM - 683 502.
   8    THE MANAGING DIRECTOR, PSN AUTOMOBILES PVT. LTD., NEAR IAC
        LABOUR QUARTERS, KUTTIKKATTUKARA, ALUPURAM.P.O., KALAMASSERY,
        ERNAKUALM - 683504.
               R1 BY ADV. SRI.S.KANNAN
 WP(C).No.31171 OF 2014(S)               2



             R2   BY   SRI.SURIN GEORGE IPE, SENIOR GOVERNMENT PLEADER
             R3   BY   SRI.A.RAJASIMHAN
             R4   BY   P.SANKARANKUTTY NAIR
             R5   BY   ADV. SRI.K.N.ABHILASH
             R7   BY   ADV. SRI.M.GOPIKRISHNAN NAMBIAR
             R6   BY   ADV. SRI.V.J.JAMES
             R8   BY   SRI.P.RAMAKRISHNAN

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
01-02-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.31171 OF 2014(S)                 3




                                JUDGMENT

Dated this the 1st day of February 2021

S.MANIKUMAR,CJ

Mr.Zacharias, party-in-person, has sought for a mandamus directing the

District Labour Officer, Civil Station, Kakkanad, Ernakulam, Regional Provident

Fund Commissioner, EPF Office, Ernakulam and the Secretary, Kerala Cricket

Association, Kaloor, Ernakulam., respondents 2 to 4 respectively, to consider

and pass orders on Exs.P2 to P4 with notice and opportunity of hearing to the

petitioner.

2. He has further sought for a writ of mandamus directing the said

respondents to ensure effective implementation of Ext.P9 within a time frame.

He has also sought for a writ of mandamus directing the District Labour Officer,

Civil Station, Kakkanad, Ernakulam, 2nd respondent to enquire into the violation

of Ext.P9 by the Executive Director, Van Guard Force Pvt. Ltd., Ernakulam, 1 st

respondent, through its six branches in the matter of engaging security

personnel to various institutions/establishment including respondents 5 to 8,

within a time frame.

3. Party in person has further sought for a writ of mandamus directing

the Regional Provident Fund Commissioner, EPF Office, Ernakulam and the

Secretary, Kerala Cricket Association, Kaloor, Ernakulam, respondents 3 and 4,

to enquire into the violation of Ext.P9 by the Executive Director, Van Guard

Force Pvt. Ltd., Ernakulam, 1st respondent, through its six branches in the

matter of recovery and payment of ESI & EPF contributions in respect of the

security personnel supplied to various institutions/establishment including

respondents 5 to 8, within a time frame.

4. Record of proceeding shows that on 13 th January, 2015, when the

matter came up for hearing, a Hon'ble Division Bench of this Court, passed the

following order:

      "                            ORDER

            Heard. Admitted.

Govt. Pleader takes notice for R2. Issue notice by speed post to R1 and R5 to 8. Standing Counsel Sri.Rajasimhan takes notice for R3. Adv.Sri.P.Sankarankutty Nair, Standing Counsel takes notice for R4.

The grievance of the petitioner is that the notification issued by the Government regarding minimum wages are not being implemented in so far as respondent No.1 is concerned. Respondent No.2 may submit a report after due enquiry regarding the allegations made in the Writ Petition. List the matter after four weeks along with the report."

5. Pursuant thereto, District Labour Officer Ernakulam, 2 nd respondent, has

submitted a report dated 9th May, 2016, and relevant paragraphs are re-

produced:

"REPORT SUBMITTED BY THE SECOND RESPONDENT AS DIRECTED BY THIS HONOURABLE COURT BY ORDER DATED 13.01.2015.

It is submitted that the complaint dated 15.10.2014 was received from the petitioner stating various matters and claiming minimum wage arrears amounting to Rs.7,750.60/- in total against the first respondent. As the complaint was without supporting documents and in the absence of clear statements of work locations, the petitioner was advised to file complaint in form VII under the Section 2012) of the Minimum Wages Act 1948, by letter dated 12.11.2014. Therefore on getting information regarding order issued by this Honourable Court, the Assistant Labour Officer, Ernakulam, I Circle was directed to conduct an inspection and to submit a detailed report. Accordingly the Assistant Labour Officer conducted an inspection on 20.11.2015 at the head office of the first respondent. At that time only the office staff was there and no security guards were available. The Assistant Labour Officer issued an inspection order to the first respondent directing to submit the registers and records for verification and the same was submitted by the first respondent. The remarks was also called for from the first respondent regarding the minimum wages arrears claimed by the petitioner. The first respondent stated that they had paid the dues amounting R8,2183/- towards the null and final settlement of the dues and requested to convene a meeting with the petitioner regarding further claim of the minimum wage arrears. Accordingly a meeting was convened on 22.01.2016 and the management of the first respondent, upon hearing the petitioner, agreed to pay the amount as claimed by the petitioner. It is submitted that the petitioner refused to accept the same and demanded legal action against the first respondent and the management of the first respondent by letter dated 25.01.2016 submitted a receipt showing the payment of Rs.2183/- paid on 21.03.2014 and stated

their willingness to pay the remaining amount of Rs.5568/- out of the total claim of Rs.7750.60 made by the petitioner. Later the management of the first respondent by letter dated 16.02.2016 stated that they have deposited a cheque for the sum of Rs.5568/- for settlement of claim raised by the petitioner, before the Deputy Labour Commissioner for disbursement.

The petitioner had by letter dated 14.12.2015 submitted a complaint against M/s. Ultratech Cement Concrete, Edayarand M/s. PSN Automobiles, Kalamassery. Employing of security guards based on a 12 hour duty agreement between the principal employer and the first respondent. The petitioner demanded to this respondent to cancel the agreement between the principal employer of the above mentioned firm and the first respondent and also to cancel the Contract Labour Registration and license with respect of the same. The petitioner also demanded this respondent to cancel the license issued to the first respondent as per the provisions contained in Shops and Commercial Establishment Act.

In this regard it is also submitted that as per Section 25 of the Minimum Wages Act 1948, any contract or agreement, whether made before or after the commencement of the Act, whereby an employee either relinquishes or reduces his right to a minimum rate of wages or any privilege or concession accruing to him under this Act shall be null and void in so far as it purports to reduce the minimum rate of wage fixed under this Act. But it is stated that this respondent has no right to declare the same as illegal and do not posses any right to cancel such an agreement. Further it is also submitted that as per the provisions of the Contract Labour (Regulation & Abolition) Act 1970, the Provisions of the Act becomes applicable only in respect of establishments where 20 or more number of workers are employed on contract basis on any day of the preceding 12 months. Hence the Act is not applicable and neither any registration nor license as per the the Contract Labour (Regulation &

Abolition) Act has been issued to the above establishments.

It is submitted that however on the basis of the complaint made by the petitioner, the Assistant Labour Officer, North Parur has conducted an inspection at the establishments where the security guards of the first respondent are employed and it was reported by the Assistant Labour Officer that the security guards were not paid enough overtime wages accounting their additional work hours and has issued a claim notice for over time wages and directing, the employer to rectifying the same.

Dated this the 9th day of May, 2016.

Sd/-

District Labour Officer, Ernakulam.

"

Giving due consideration to the pleadings and material on record, we

deem it fit to accept the above report and satisfied with the action taken and

that there is no need to retain the writ petition. Accordingly, the writ petition is

disposed of.

Sd/-

S.MANIKUMAR

CHIEF JUSTICE

Sd/-

                                                      SHAJI P.CHALY

smv                                                         JUDGE





                            APPENDIX
PETITIONER'S EXHIBITS:

EXHIBIT P1           EXHIBIT P1: TRUE COPY OF THE REPRESENTATION

DATED 15/10/2014 SUBMITTED BEFORE THE 1ST RESPONDENT.

EXHIBIT P2 EXHIBIT P2: TRUE COPY OF THE REPRESENTATION DATED 15/10/2014 SUBMITTED BEFORE THE 2ND RESPONDENT.

EXHIBIT P3 EXHIBIT P3: TRUE COPY OF THE REPRESENTATION DATED 15/10/2014 SUBMITTED BEFORE THE 3RD RESPONDENT.

EXHIBIT P4 EXHIBIT P4: TRUE COPY OF THE REPRESENTATION DATED 15/10/2014 SUBMITTED BEFORE THE 4TH RESPONDENT.

EXHIBIT P5 EXHIBIT P5: TRUE COPY OF THE REPRESENTATION DATED 24/10/2014 SUBMITTED BEFORE THE 5TH RESPONDENT.

EXHIBIT P6 EXHIBIT P6: TRUE COPY OF THE REPRESENTATION DATED 24/10/2014 SUBMITTED BEFORE THE 6TH RESPONDENT.

EXHIBIT P7 EXHIBIT P7: TRUE COPY OF THE REPRESENTATIONS DATED 20/10/2014 SUBMITTED BEFORE 7TH RESPONDENT.

EXHIBIT P8 EXHIBIT P8: TRUE COPY OF THE REPRESENTATIONS DATED 20/10/2014 SUBMITTED BEFORE 8TH RESPONDENT.

EXHIBIT P9 EXHIBIT P9: TRUE COPY OF THE GOVERNMENT NOTIFICATION GO(MS) NO.80/1010/LABOUR DATED 24/7/2010.

RESPONDENT'S EXHIBITS:

EXHIBIT R1 (A) TRUE COPIES OF THE APPLICATIONS FILED BY THE WRIT PETITIONER ALONG WITH ITS FREE ENGLISH TRANSLATION SUBMITTED BEFORE THE STATUTORY AUTHORITIES.

EXHIBIT R1 (B) A TRUE COPY OF TH TEMPORARY IDENTITY CERTIFICATE ISSUED IN FAVOUR OF THE PETITIONER FROM EMPLOYEES STATE INSURANCE CORPORATION

EXHIBIT R1(C) A TRUE COPY OF THE RELEVANT EXTRACT OF ELECTRONIC CHALLAN CUM REGISTER PERTAINING TO THE 1ST RESPONDENT MAINTAINED BY THE EMPLOYEES PROVIDENT FUND ORGANIZATION, KOCHI FOR THE WAGE MONTH OF OCTOBER, 2014

EXHIBIT R1(D) A TRUE COPY OF THE APPLICATION FORM SUBMITTED BY THE WRIT PETITIONER BEFORE THE 1ST RESPONDENT ON 1.10.2014

EXHIBIT R1(E) A TRUE COPY OF THE LETTER SUBMITTED BY THE WRIT PETITIONER BEFORE THE 1ST RESPONDENT ACCEPTING HIS TERMINATION AND REQUESTING TO RELEASE HIS DOCUMENTS WHICH HE HAD DEPOSITED WITH 1ST RESPONDENT

EXHIBIT R1(F) A TRUE COPY OF THE REGISTRATION CERTIFICATE ISSUED TO THIS RESPONDENT BY THE ASSISTANT LABOUR OFFICER, ERNAKULAM 1ST CIRCLE, KOCHI UNDER KERALA SHOPS AND COMMERCIAL ESTABLISHMENT ACT ALONG WITH ITS FREE ENGLISH TRANSLATION

EXHIBIT R1(G) A TRUE COPY OF THE CERTIFICATE OF INCORPORATION ISSUED IN FAVOR OF THIS RESPONDENT BY THE REGISTRAR OF COMPANIES, KERALA AND LAKSHADWEEP

EXHIBIT R1(H) A TRUE COPY OF THE COMMUNICATION DATED 15.11.2012 ISSUED BY THE DIRECTOR, EMPLOYEES STATE INSURANCE CORPORATION TO THE 1ST RESPONDENT INTIMATING REGISTRATION OF THEE SAME ON ITS ROLLS

EXHIBIT R1(I) A TRUE COPY OF THE COMMUNICATION ISSUED BY THE REGIONAL PROVIDENT FUND COMMISSIONER DATED 15.1.2013 TO THE 1ST RESPONDENT INTIMATING REGISTRATION OF THE SAME ON ITS ROLLS

EXHIBIT R1(J) A TRUE COPY OF THE COMBINED CHALLAN ISSUED BY THE EMPLOYEES PROVIDENT FUND ORGANIZATION EVIDENCING REMITTANCE OF CONTRIBUTIONS BY THE 1ST RESPONDENT DATED 21.1.2015

EXHIBIT R1(K) A TRUE COPY OF THE COMPUTER GENERATED PRINT OUT FORM THE WEBSITE OF EMPLOYEES STATE INSURANCE CORPORATION EVIDENCING REMITTANCE OF CONTRIBUTIONS BY THE 1ST RESPONDENT DATED 21.1.2015